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Social Media Investigations May Be Essential to Hiring and Can Be Conducted Lawfully

Some attorneys will advise employers to avoid using social media as a recruitment and screening tool.  The caution is wise; however, avoidance may be impractical, and the proper use of social media can most definitely pay off.  In many cases, we consider it actually necessary. While risks of unlawful use exist and need be avoided, bona fide occupational qualifications can be investigated through proper methodology.  The following 3 rules are set forth to simplify legal compliance.

1) Timing is everything.  The EEOC is often more concerned about the timing and outcomes of collecting data than the collection of data itself.  That is, we know certain visual characteristics when we interview or videoconference a candidate, yet premature collection and use of this data is considered unlawful “profiling.” The investigation of social media after interview is typically safer than prior to interview.  A company that shows reasonable care and great diversity in demographics and advancement provides substantially stronger affirmative defense than a company with insufficient diversity and/or without reasonable care compliance. Protected characteristics are found not only in the Civil Rights Act of 1964 but also in the legal changes and state regulations emerging ongoing.
 
2) Bona Fide Occupational Qualifications (BFOQs) are still considered a lawful job requirement subject to reasonable investigation. How a candidate presents his/herself to the general public and company stakeholders is a legitimate public relations and credibility concern.   While off duty behavior may or may not be appropriate to monitor and discover as a BFOQ, how a candidate chooses to be known on the Internet as searchable by customers, co-workers, competitors, associates, vendors, investors and other stakeholders, is certainly a BFOQ.  Such a presence affects on duty performance, especially when easily detected by search engine or links to professional or company presence.  A great job description and strong company policies will validate social media investigations.
 
3) Outsource investigation and/or control consistency and chain of information.  HRS policy establishment, training and candidate investigation services are currently booming.  While we are biased that no competitor meets our standards, please know resources abound for outsourcing implementation or procedural design as risk management. If choosing to insource the effort, control documentation and custody of information. Appropriate policies and disclosures should be considered.  One size does not fit all here.  Social media usage and monitoring policies should match the company’s unique practices.  And, although the candidate may choose the “world wide web” to air private and personal information, the employer must remember to not further the information distribution except on a “need to know” basis. Use of search engines to collect data is recommended.  The method of collecting data should align with reasonable access to information by company stakeholders.

The appropriate use of social media in hiring provides cost-effective recruitment, often with cost savings or targeted candidate access impractical to ignore.  However, the very nature of recruitment via social media could grant us access to candidate social media profiles too soon. To use only social media for recruitment, in certain cases, may in itself be considered discriminatory.  Audience demographics should be considered to both control costs and to also ensure abidance with Affirmative Action Plans where they exist.

It is difficult to investigate certain social media sites, especially those of a personal rather than professional focus, without receiving information regarding age, race, nationality, military, family status, sexual orientation, religion, or some combination of the many, many lawfully protected characteristics.  Pictures, comments, links, interests and profile page data cannot be reasonably avoided. To better manage risks, we suggest directing the candidate to the company’s own application system rather than linking the recruitment response with the candidate’s social media profile.  Such a step allows the company to broadcast the recruitment via social media but to collect responses through traditional methods discouraging profiling. 

Upon reaching the correct stage and method of data collection, be certain to avoid risk of error and falsehood. Identities can be confused, and inaccurate information may be collected.  Be certain you have the correct individual, and be certain the information is true. Background check permission forms should collect necessary data to validate identity. HRS recommends and designs a sequential plan of using social media investigations lawfully, consistently, with proper timing and privacy controls toward the appropriate evaluation of BFOQs.  As an added safeguard, it is popularly recommended to involve an outside firm or an individual not participating in the employment decisions. That individual or firm should then be in position to report only on job requirements and BFOQs, thereby inherently controlling the distribution and use of data.

 

 


Jessica Ollenburg - Thursday, February 24, 2011